Madhya Pradesh

StateCommission

A/21/358

ENIGMA AUTOMOBILES - Complainant(s)

Versus

RATANLAL VERMA - Opp.Party(s)

SH. D.L JAT

19 Sep 2024

ORDER

M. P. STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,

PLOT NO.76, ARERA HILLS, BHOPAL

 

FIRST APPEAL NO. 358 OF 2021

(Arising out of order dated 05.07.2021 passed in C.C.No.883/2017 by District Commission, Bhopal-2)

 

ENIGMA AUTOMOBILES

THROUHG PROPRIETOR ANMOL BOHRE,

S/O LATE SHRI B. K. BOHRE,

R/O LV-5, INDUS GARDEN,

E-8 EXTENSION, BAWADIA KALAN,

GULMOHAR, BHOPAL (M.P.)                                                                                    … APPELLANT.

 

                        Versus

 

RATANLAL VERMA,

R/O 230, SANJAY NAGAR,

SHAHJAHANABAD, BHOPAL (M.P.)                                                                         …. RESPONDENT.   

 

BEFORE :

            HON’BLE SHRI A. K. TIWARI                : ACTING PRESIDENT

            HON’BLE DR. SRIKANT PANDEY        :          MEMBER

           

COUNSEL FOR PARTIES :

                Shri Mohd. Iqram, learned counsel for the appellant.

             None for the respondent.

 

O R D E R

(Passed On 19.09.2024)

                                The following order of the Commission was delivered by A. K. Tiwari, Acting President:

                   The opposite party/appellant has filed this appeal against the order dated 05.07.2021 passed by the District Consumer Disputes Redressal Forum, Bhopal-2 (for short ‘District Commission) in C.C.No.883/2017 whereby the complaint filed by the complainant/respondent has been allowed.

2.                Facts of the case in short are that the complainant/respondent for earning his livelihood by means of self-employment had purchased a battery operated Electric Rickshaw from the opposite party/appellant on

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09.05.2017 for a sum of Rs.1,50,000/-. It is submitted that the opposite party assured him that on 6 hours battery charging the rickshaw will run 80-100 km. It is alleged that on the very next day of its purchase, the rickshaw run only 20 km he made complaint to the opposite party. The opposite party asked him to come after 10-15 days. On 23.05.2017 the opposite party changed the battery. It is alleged that even after change of battery the rickshaw is running only 20 km in one charge. On 05.07.2017 again battery was changed and on 09.07.2017 all the batteries were changed. Again on complaint being made, on 01.08.2017 all the four batteries were changed and he was informed that if the problem persists they will change the rickshaw. It is alleged by the complainant that despite repeated complaints neither the opposite party replaced the rickshaw nor refund the cost of rickshaw. The complainant made a complaint to Police Station Shahpura on 04.08.2017 and a complaint to the Collector, Bhopal on 08.08.2017 during jansunwai. The complainant therefore approached the District Commission seeking replacement of rickshaw or in alternate refund of cost of rickshaw.

3.                The opposite party/appellant resisted the complaint stating that the complainant is in business of selling clothes as also for plying the rickshaw he hired a driver. The complainant had purchased rickshaw for commercial gain and therefore he is not a consumer. It is denied that the

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opposite party had given any assurance that the e-rickshaw will run 80-100 km on 6 hours charging. It is submitted that on 23.05.2017 the complainant asked the opposite party to change the battery as battery was not working on that the opposite party told him it is the manufacturer of the battery is liable and not the opposite party but he pressurizing the opposite party get the battery replaced. It is denied that on 09.07.2017 battery was changed. It is also denied that on 01.08.2017 all the batteries were changed and the opposite party never gave any assurance that if the problem persists, the opposite party will change the e-rickshaw. The complainant in order to black mail the opposite party made frivolous complaints to the police and Collector. It is thus prayed that the complaint be dismissed. 

4.                The District Commission holding the opposite party deficient in service allowed the complaint directing the opposite party either to replace the e-rickshaw with new one with claimed mileage or in alternative to pay cost of the e-rickshaw Rs.1,50,000/- to the complainant/respondent with interest @ 6% p.a. from 09.05.2017 till realization within two months from the date of order. Further compensation of Rs.5,000/- and costs of Rs.3,000/- is also awarded. 

6.                Heard learned counsel for the appellant. Perused the record.

 

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7.                Learned counsel for the appellant argued that the complainant nowhere in his complaint has mentioned that there is manufacturing defect in the vehicle nor has filed any report regarding manufacturing defect. At the request of the complainant, the opposite party replaced the battery and thereafter the complainant never made any complaint nor brought the e-rickshaw to their centre. The opposite party told him that if there will be any problem you can come to their centre but instead of approaching the opposite party the complainant made complaint to police, Collector and before the District Commission. He argued that the District Commission erroneously allowing the complaint directed the opposite party to replace the e-rickshaw. He has submitted that on 29.08.2017 a compromise entered into between the parties in which the opposite party asked the complainant to bring the e-rickshaw to them on 30.08.2017 for servicing but the complainant not turned up. If he could have come on 30.08.2017, their service engineer will inspect the e-rickshaw and if he found any defect, that could have been removed. The opposite party/appellant filed copy of compromise along with an application under Order 41 Rule 27 of CPC before this Commission. He argued that for want of any expert opinion, the impugned order deserves to be set-aside.

 

 

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8.                The complainant has filed his affidavit, counter affidavit and documents C-1 to C-8.  On behalf of opposite party an affidavit of Anmol Bohre has been filed.

9.                We have perused the complaint, reply, affidavits and documents filed by the parties. The main allegation of the complainant/respondent is with regard to manufacturing defect in the subject e-rickshaw as it was not giving mileage of 80-100 km in one charge of 6 hours. The main question which falls for our consideration in the instant matter is whether there was any manufacturing defect in the subject e-rickshaw or not. On going through the documents we find that in the reply as also in the affidavit, the opposite party has clearly pleaded that whenever the complainant/respondent came with problem it was removed even the battery was changed. However, the complainant never availed free services of the subject e-rickshaw during warranty period. Also as per compromise entered into between them he could not bring the e-rickshaw on 30.08.2017 for its inspection by the Service engineers. This fact was not controverted by the complainant by placing any document on record that he availed free services of the e-rickshaw. In such circumstances, it cannot be said that the opposite party failed to remove the defects pointed out in the vehicle.

 

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10.              It is pertinent to mention here that the complainant failed to bring any expert evidence regarding manufacturing defect in the e-rickshaw. The onus was on the complainant to prove that the subject e-rickshaw was having manufacturing defects. Section 13 (1)(c) of the Consumer Protection Act, 1986 specifically provides that if a complainant alleges defects in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain sample of goods from the complainant, seal it and send it to such laboratory which makes any analysis or test whichever may be necessary with a view to find out whether such goods suffer from defect alleged in the complaint or from any other object and report it back to the District Forum based on which the District Forum determines the dispute between the parties. The complainant ought to have submit the report after thorough inspection of the e-rickshaw by the appropriate laboratory. Section 13(1)(d) of the Act clearly specifies “before any sample of the goods is referred to any appropriate laboratory under clause (c), the District Forum may require the complainant to deposit to the credit of the Forum such fees as may be specified, for the payment to the appropriate laboratory for carrying out necessary analysis or test in relation to the goods in question.”

 

 

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11.              It is the duty of the complainant and not of the opposite party to get the e-rickshaw examined by some expert/appropriate laboratory to substantiate his allegation regarding manufacturing defect.

12.              The complainant/respondent failed to show by leading any evidence whatsoever to prove any manufacturing defect in the subject e-rickshaw.  The manufacturing defect is much more than an ordinary defect which can be cured by replacing the defective part.  Manufacturing defect is fundamental basic defect which creeps while manufacturing a machinery. To prove such a defect opinion of an expert is necessary which is not forthcoming in the instant case.

13.              The District Commission without obtaining any expert opinion as to whether the e-rickshaw suffered from any manufacturing defect/inherent defect rushed to an arbitrary conclusion on the basis of the pleadings of the complainant that the subject e-rickshaw is suffering from manufacturing defect. There were so many reasons for that more specifically, the complainant never got the services done. The reasons recorded by the District Commission for its findings on manufacturing defects in the subject vehicle do not appear to be grounded on due appreciation of facts aided by impartial logic.

14.              From the record, we find that in absence of expert evidence it cannot be concluded that the subject e-rickshaw was having

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manufacturing defect as the complainant himself was negligent in not getting the servicing properly as also not examining the vehicle by some expert or appropriate laboratory regarding alleged manufacturing defect in the e-rickshaw. Same view is taken by this Commission in Honda Cars India Limited Vs Nikhlesh Gurudas Sukhramanai & Ors 2024 (3) CPR 71 (MP)

15.              In view of the above discussion, while holding that the order for replacement of the e-rickshaw or refund of its price with interest, compensation and costs cannot be justified by any stretch of imagination. We find that the District Commission has committed gross error in holding the opposite party deficient in service and in directing it for replacement of e-rickshaw or refund of its price. The impugned order cannot be sustained and it is hereby set-aside. Consequently, the complaint is dismissed.

16.              In the result, the appeal is allowed.  No order as to costs.

 

              (A. K. Tiwari)                          (Dr. Srikant Pandey)

            Acting President                                  Member